Generalized unsupported public opposition to use allowed by special permit cannot overcome hard evidence.

Planning board decision based on unsupported public opposition overturned, where hard evidence ignored.


A devloper sought a special permit for an affordable housing project of 48 units in an area permitting the use by special permit. The issue of water runoff was fond to have been adequately addressed by the lead agency in the SEQRA review. Howver, after a public hearing revealed that widespread neigborhood opposition to the project existed, the planning board denied the special permit, citing the water runoff problem. The neighborhood opposition was not supported by any evidence. One of the planning board members, arguing to follow the vocal neighbors, said, "people living in a particular neigborhood know more about the physical conditions of here they live than any experts brought in by an applicant." The court used this quote as evidence that the board relied on voal unsupported opposition, rather than empirical evidence submitted by the applicant that the water runoff would actually be reduced by the project. The Appellate Division, Third Department, affirmed Supreme Court's annulment of the planning board denial.

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Reference Info:Decision | State, 2nd Circuit, New York | United States

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Reuben Ortenberg, Woods Oviatt Gilman, LLP | Attorney Advertising

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